The Honorable Russell G. Clark, United States District Court 1

for the Western District of Missouri.

___________

No. 95-4232

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Lawrence Wayne Corum, *

 *

Appellant, *

 *

v. * Appeal from the United States

 * District Court for the

Thomas K. McGuire, Jr., Greene * Western District of Missouri.

County Circuit Court Judge; *

Mel Carnahan, Governor of the * [UNPUBLISHED]

State of Missouri; Dr. White, *

 *

Appellees. *

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 Submitted: October 7, 1996

 Filed: October 15, 1996

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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.

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PER CURIAM.

Lawrence W. Corum, a Missouri inmate, appeals from the district

court's order granting the defendants' motion to dismiss his 42 U.S.C. § 1

1983 action. We affirm.

Corum filed this section 1983 action against then Greene County

Circuit Court Judge Thomas K. McGuire, Jr., Governor Mel Carnahan, and

former Missouri Department of Corrections employee Dr. White, seeking

declaratory relief and damages. Corum claimed that his equal protection

and due process rights were violated because he was charged by information,

rather than indictment; because he pleaded guilty and was sentenced by

Judge McGuire under
-2-

a repealed statute; because Judge McGuire was mentally incompetent at the

time he accepted Corum's plea; and because the disparity between his

sentence and those Judge McGuire gave to "other individuals sentenced by

the court" demonstrated judicial bias. Corum further alleged Governor

Carnahan's office deceptively led his wife to believe his petition for

clemency would be seriously considered. As to Dr. White, Corum contended

that he was first told he tested positive for tuberculosis and then told

he tested negative, and that, notwithstanding his negative results, he

submitted to unnecessary treatment after Dr. White told him refusal to

submit to the treatment would result in "serious consequences"; Corum

claimed the unwanted treatment constituted an assault and battery. Upon

the defendants' motions, the district court dismissed Corum's complaint for

failure to state a claim pursuant to Federal Rule of Civil Procedure

12(b)(6). 

We review de novo the grant of dismissal under Rule 12(b)(6), viewing

the complaint in the light most favorable to Corum, and affirming only if

it appears beyond doubt that he can prove no set of facts that would

entitle him to relief. See Weaver v. Clark, 45 F.3d 1253, 1255 (8th Cir.

1995) (standard of review). 

Corum cannot challenge the validity of his conviction and sentence

in this section 1983 action, but must do so through a habeas corpus action

against the appropriate Missouri prison official, and then only after he

has exhausted all of his available adequate state remedies. See Preiser

v. Rodriguez, 411 U.S. 475, 489-90 (1973); Franklin v. Webb, 653 F.2d 362,

364 (8th Cir. 1981) (per curiam) (correct to focus on nature of complaint

rather than relief sought); Offet v. Solem, 823 F.2d 1256, 1258 (8th Cir.

1987) (applying Preiser to § 1983 action seeking declaratory relief).

Furthermore, to the extent Corum seeks damages for his allegedly

unconstitutional conviction and sentence, his section 1983 action is barred

until he can show his conviction or sentence has been invalidated. See

Heck v. Humphrey, 114 S. Ct. 2364, 2372 (1994);
see also Stump v. Sparkman, 435 U.S. 349, 355-57 (1978) (judicial

immunity). 

Corum's claim Governor Carnahan deceived him concerning clemency

consideration does not implicate any constitutional right. See Cross v.

City of Des Moines, 965 F.2d 629, 631-32 (8th Cir. 1992); Otey v. Hopkins,

5 F.3d 1125, 1128-29 n.3 (8th Cir. 1993) ("standardless" clemency statute

creates no protectable interest, only right to ask for mercy), cert.

denied, 114 S. Ct. 2768 (1994); Whitmore v. Gaines, 24 F.3d 1032, 1034 (8th

Cir. 1994) (clemency denial discretionary absent interest created in

statute).

Finally, even assuming Corum's claim against Dr. White may be

liberally construed as a claim that Dr. White was deliberately indifferent

to Corum's medical needs, it fails because Corum did not allege that Dr.

White knew that Corum's positive test results were not accurate. See Lee

v. Armontrout, 991 F.2d 487, 489 (8th Cir.) (per curiam) ("prison officials

must test prisoners for tuberculosis and treat them . . . if they test

positive in order to prevent widespread infection"), cert. denied, 510 U.S.

U.S. 875 (1993); Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995) (citation

omitted) (prison officials are deliberately indifferent to prisoner's

serious medical needs when they actually "know[] of and disregard[]" those

needs).

Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.